Our next president could have the power to transform the federal courts for generations.
One issue in the upcoming election that could have a huge and long-term impact on the country is rarely mentioned by either Hillary Clinton or Donald Trump.
That issue is the federal courts — and not just whom the president appoints to the Supreme Court (which is a very big deal), but also the other hundreds of lower-court judges a president appoints, which is almost as big a deal.
“Hillary Clinton has the capacity,” according to a recent post in the pro-Hillary Vox.com, “to do something that almost never gets discussed in the campaign: change the ideological landscape of the federal judiciary for a generation. It could be one of the defining features of her legacy.”
On inauguration day next January, the new president will have at least 92 vacant federal judgeships to fill — and possibly even more, depending on retirements, resignations, and deaths between now and then. Obama has nominated candidates to fill 57 of those vacancies, but all of those nominations will expire when Congress adjourns later this year. He never bothered to fill the rest. It is highly unlikely that any of his unconfirmed nominees will be voted on before the Senate adjourns.
When Democrats controlled the Senate, before the 2014 off-year election, Majority Leader Harry Reid, after tremendous opposition and lots of teeth-gnashing, pulled the trigger on the “nuclear option” and removed the minority’s power to require 60 votes for confirmation, leaving only Supreme Court nominations subject to the rule. Republicans, in retribution, have simply stopped confirming most court-of-appeals judges — one reason for the large number of unconfirmed nominees. Reid’s exercise of the nuclear option also effectively removed any power Republicans would have, if Democrats control both the White House and the Senate next January, to stop Clinton’s liberal appointees.
According to a source on the Senate Judiciary Committee, when Obama was elected, only the Ninth Circuit Court of Appeals, which covers California and several other western states, was “blue,” meaning it had a majority of Democrat-appointed judges. Today, after nearly eight years of Obama, nine of the 13 circuits are blue, and after just four years of a Hillary Clinton administration, all 13 would likely be blue.
Barack Obama has used his judicial-appointment power to systematically install liberal judicial activists in federal courts throughout the country.
The courts play an increasingly major role in the federal system — much more than the founders ever envisioned (Alexander Hamilton, in Federalist No. 78, famously commented that the courts would be the least dangerous branch). And although the Supreme Court does have a huge piece of the pie, the lower courts, in the aggregate and in the long run, are probably more influential. The Supreme Court hears about 80 cases a year, many of which are not very exciting and make no new law. It turns down about 7,000 cases from the federal courts of appeal, which means those 7,000 cases (plus the other 20,000 or so that are never appealed) have nowhere else to go and the decision in the case is final.
Barack Obama has used his judicial-appointment power to systematically install liberal judicial activists in federal courts throughout the country. He has transformed the circuit courts of appeals into super legislatures, which now govern many aspects of the states within their jurisdictions. If Hillary Clinton is elected, there is no question that she will add hundreds of new liberal activists to the federal judiciary, ensuring the judicial imposition of the Democrat’s liberal social agenda for at least two more generations.
According to Vox.com:
Clinton will staff the lower courts with a big new cohort of judges who’ll be systematically more sympathetic to criminal defendants, labor and environmental plaintiffs, and government regulators — transforming the federal judiciary back into a powerful prop of progressive governance for years to come.
Clinton would likely renominate either Merrick Garland or another, more liberal candidate to the late Antonin Scalia’s Supreme Court seat before proceeding to fill lower-court judgeships. Assuming her candidate is confirmed — probably a fairly safe assumption — the Supreme Court would change from a reasonably conservative court to one with the first liberal majority in a generation. District-court and circuit-court judges would then be free to push new precedents farther to the left without the fear of being reversed in the Supreme Court.
Clinton has made no secret about the sort of judge she would nominate. In talking about her possible Supreme Court appointments, she recently said she had “a bunch of litmus tests” that she would use, including requiring judges “who don’t have a knee-jerk reaction to support business” but who support the Voting Rights Act (i.e. oppose voter identification), abortion rights, the gay community, overturning the Citizens United case, and preserving “marriage equality.” Her appointees would certainly be partial to releasing as many federal prison inmates as possible, and concerning the landmark Heller case, she said “the Supreme Court is wrong on the Second Amendment. And I am going to make that case every chance I get.”
As for Donald Trump, he released a list of eleven potential Supreme Court nominees, compiled with the help of the Heritage Foundation and the Federalist Society. Not surprisingly, that list was well received by conservatives. As for lower-court judges, Trump said recently in response to a radio talk-show host’s question, “We’re going to have great judges, conservative, all picked by the Federalist Society.”
Federal judges, when confirmed, serve for life. Whatever else Clinton would be able to accomplish, there is little doubt that the federal courts, heavily populated with her activist liberal judges, would be her most lasting legacy. Republican Never Trumpers and those inclined to stay home on Election Day would be well advised to consider what the consequences of sitting out the November election might be concerning the next time they or issues they care about wind up in a federal court.
— Alfred Regnery is chairman of the board of trustees of the Intercollegiate Studies Institute.